“If there had been any conflict or inconsistency anywhere in the testimony, by which the truth of the testimony ... was drawn in question, we would feel that we could not interfere with the decision of the trial court, since that court heard the witnesses testify and had the opportunity to observe their demeanor, respectively, and was thus in a better position than we could be to deduce the truth”
How later courts described this case
- “If there had been any conflict or inconsistency anywhere in the testimony, by which the truth of the testimony ... was drawn in question, we would feel that we could not interfere with the decision of the trial court, since that court heard the witnesses testify and had the opportunity to observe their demeanor, respectively, and was thus in a better position than we could be to deduce the truth”
Written by the judges who cited it.
The opinion
Lovins, Judge,
dissenting:
I respectfully dissent from the affirmance of this case.
I think the syllabus points state sound principles of law, but I do not agree with the application of the law to the facts of this case.
The law relative to forfeitures of property used in the transportation of intoxicating liquor has received considerable attention from the courts in recent times. Annotations concerning property used in violation of liquor laws will be found in 47 A.L.R. 1055 . As applied to state statutes, the particular part of the annotation will be found on page 1063, id. Annotations relative to cognate questions presented in this case will be found in 61 A.L.R. 551 , 556; 73 A.L.R. 1087 , 1097; 82 A.L.R. 607 , 612; 124 A.L.R, 288, 308. An examination of'the authorities cited and discussed in the annotations above mentioned clearly indicates that the statutes similar to the one here considered are constitutional.
Statutes of this kind fall into two general classifications: (a) statutes which forfeit the property regardless of the innocence of the claimant to the property, and (b) statutes similar to the one here considered which permits the owner of the property allegedly subject to forfeiture to show that he was ignorant of the illegal use of' his property by the person who committed the offense.
It has been uniformly held that in cases arising under statutes in class (b), above mentioned, the burden of *404 proving ignorance, lack of connivance, and innocence of wrongdoing is upon the claimant of the property.
These statutes seem to stem from two principles of the common law, viz: that involving the class of deodands where there is no actual criminal act. I Chitty’s Blackstone, page 223, et seq. (Book 1, pages 299, 300, 301), where the learned commentator discusses the reasons for the principle applicable to deodands and impliedly condemns it; and that relating to the forfeiture of the property of the- person actually committing a crime. II Chitty’s Blackstone, page 307, et seq. (Book IV, pages 377, 381). The statute here considered, by somewhat strained construction, places the claimant and owner of the property, who intervenes or answers the petition of the state, in the position of a plaintiff and places the burden on him to prove to the satisfaction of the trial court that he was ignorant of the intended violation of the law and therefore entitled to the return of the forfeited property.
The unusual case of Van Oster v. Kansas, 272 U. S. 465 , 47 S. Ct. 133 , 71 L. ed. 354, shows an extreme application of a similar statute. In the Van Oster case the power of a state to forfeit property used in violation of the prohibition laws was held to extend to an innocent owner who had entrusted its possession and use to the wrongdoer, although the person committing the crime had been acquitted of the alleged crime on which the forfeiture was based.
On the principles of common justice, this seems to be an erroneous doctrine. In a prior opinion of the Supreme Court of the United States in Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 , 41 S. Ct. 189 , 65 L. ed. 376, will be found what amounts to a tacit apology for the doctrine later applied in the Van Oster case. A trenchant criticism of the Van Oster case will be found in the opinion in the case of General Motors Acceptance Corp. v. State (Tex. Com. App.), 12 S. W. 2d 968 .
The opinion of the court in the instant case relies upon the case of Jones v. Commonwealth (Va.), 126 S. E. 238 . *405 It was held in the Jones case that the burden was upon ■the owner, under the applicable provisions of the Code of Virginia, to show that he was ignorant of the illegal use of the vehicle “and that it was' without his connivance or consent.” It also appears from the opinion in the Jones case that the owner was held to have sustained the burden of proving his innocence and lack of connivance and consent, and therefore was entitled to a release of his property from forfeiture.
In the instant case, having regard to the weakness of the evidence on behalf of the state to justify a forfeiture, I do not think that the state’s proof did any more than raise a suspicion that Ruby McFarland knew or should have know about the illegal use of her automobile.. I agree that, in view of the authorities mentioned above, the burden was upon her, and I think she met that requirement.'
I do not think, however, that the term “to the satisfaction of the court”, appearing in the statute, imports such heavy burden as is placed upon the claimant of the property in this case. I think that Ruby McFarland was entitled to have her automobile discharged from forfeiture.
Of course, the statutes vest in the trial courts wide discretion, but that discretion is subject to review and should be exercised with care and caution. To simply take by forfeiture the property of a person who is not guilty of any fault or crime is certainly a dangerous prerogative to be vested in a sovereignty which presumably guarantees the peaceful possession and lawful protection of private property.
I would reverse the judgment of the trial court.
I am authorized to say that Judge Riley joins in this dissent.